Date: 19990607
Docket: IMM-4356-98
BETWEEN:
ROQUE D'ALMEIDA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER & REASONS FOR ORDER
SHARLOW J.;
[1] The applicant is a resident of Kuwait. On October 15, 1997, he applied for permanent residence in Canada for himself and his family. The application was denied on July 29, 1998 by a visa officer in London.
[2] On August 28, 1998, the applicant commenced proceedings for an order quashing that decision and directing that his application for permanent residence be reconsidered in accordance with the Immigration Act and Regulations in force at the time the application was made. His application record was filed on December 3, 1998.
[3] The respondent agreed that the application should be allowed. By motion filed on January 5, 1999, the respondent sought an order conforming substantially to the relief sought by the applicant. The respondent also asked for costs, for the reasons referred to below.
[4] The applicant opposed the respondent's motion and argued that it should be dismissed with costs on a solicitor and client basis. He wanted his application to be heard on the merits so that there would be a decision establishing a point of law he thought was important. The respondent's motion was set down for oral hearing on May 10, 1999.
[5] The applicant filed a motion on May 5, 1999, to be heard at the same time as the respondent's motion, seeking leave to file a further affidavit in support of his application for judicial review.
[6] After hearing argument on both motions, I made the orders requested by the respondent, except as to costs, and denied those requested by the applicant. I asked counsel for both parties to make submissions on the matter of costs within ten days, and they have done so.
[7] The respondent seeks costs on the basis that the applicant acted unreasonably in seeking to pursue his arguments despite the respondent's agreement that the relief sought by the applicant should be granted, thus unnecessarily prolonging the proceedings.
[8] Counsel for the applicant argues that neither party should be awarded costs. He argues that the issues of law raised by the respondent's motion and cross-motion were novel. In my view, there is nothing novel about those issues.
[9] Counsel for the applicant also points out that counsel for the respondent disclosed settlement discussions before the disposition of the case. Generally, the content of settlement discussions should not be disclosed to the judge before the disposition of the case. If settlement discussions are to be a factor in a party's claim for costs, that party should ask the court to defer any decision on costs until a decision is rendered on the merits.
[10] However, in this case the respondent's claim for costs was made in conjunction with the respondent's motion disposing of the case in the applicant's favour, and was based on the unreasonableness of the applicant, as proved in part by the applicant's refusal to agree to a settlement conceding the applicant's entitlement to the relief sought. In these unusual circumstances, I do not fault counsel for the respondent for supporting his argument by reference to those settlement discussions.
[11] Rule 22 of the Immigration Rules requires "special reasons" before any costs may be awarded in an application for judicial review of a decision under the Immigration Act. A review of the case law indicates that special reasons may be found if one party has unnecessarily or unreasonably prolonged the proceedings: Ayala-Barriere v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 310 (T.D.), Canada (Minister of Employment & Immigration) v. Ermeyev (1994), 83 F.T.R. 158 (T.D.).
[12] In my view, this is such a case. I note that the same conclusion was reached on similar facts in Chan v. Canada (Minister of Employment and Immigration) (1994), 82 F.T.R. 244).
[13] Counsel for the respondent suggests that costs be fixed at $1,500. Counsel for the applicant does not dispute the quantum and, in my view, the quantum is reasonable. The respondent is awarded costs of $1,500.
Karen R. Sharlow
Judge
Ottawa, Ontario
June 7, 1999